. . 

E O~KNEY GENERAL 

OFTEXAS 

fb;mra&e R. Ii. Cory 

State Affairs Committee 

Austin, Texas 

Dear Mr. Cory: 

Opinion NO. W-621 

Re: Constltutlonallty of H.B. 

142, of the 56th Leglslature, authorizing the State 

Parks Board to acquire public sites in proximity to 

the shores of public lakes, 

bays and gulfs for recreatlon purposes. 

You have asked our opinion on the constitutionality of 

H.B. 142, specifically in regard to whether the words "on or in 

proximity to" are too vague and indefinite to authorize a condemnation. 

The provision of the bill in question Is: 

"Section 1. The State Parks Board Is hereby 

authorized to acquire, by gift, purchase or condemnation, and to improve and maintain public sites 

on or In proximity to the shores of public lakes, 

bays and gulfs 'for parking vehicles, for camping, 

picnicking, boat launching, and other recreational 

purposes. The acquisition of such properties and 

the imprdvement and maintenance of same by the State 

Parks Board shall be covered specifically by funds 

allocated under the current appropriations of the 

Texas Legislature. The proceedings for condemnation 

of property under this Act shall be Instituted and 

conducted in accordance with Title 52 of the Revised 

Civil Statutes." 

There is no constitutional requirement that the Legislature limit the location of land that may be taken under a 

condemnation statute. 1.6 Tex.Jur., Eminent Domain, 8 130 states: 
. . 

Honorable R. H. Cozy, page 2 (~-621) 

“It seems that the plenary power of the legislature ,over the subject of eminent domain authorizes It to designate, In each delegation of the 

right to exercise the power, the particular premises which the grantee may take. The general purpose being public, the legislative body may define 

the extent of the appropriation necessary to the 

public use. But this it has not, for the most 

part, attempted to do, because it would be obviously Impracticable to fix in advance the amount 

or location of land which a grantee some day might 

condemn for one or more of its purposes. . , .n 

However, since H.B. 142 restricts condemnation thereunder to land !‘on or in proximity to” public lakes, bays, and 

gulfs it would be a fact question whether a given tract was so 

situated. In McGhee Irrigating Ditch Co. v. Hudson, 22 S.W. 

398 (Sup.Ct. 1893) it was contended th t condemnation Dower 

granted In Acts of’1889, 21st Leglslatu:e, Regular Session, 

page 100, chapter 88, was void for uncertainty. The first sectlon of the act stated: 

II 

. that the unappropriated waters of every 

river k’natural stream within the arid portions of 

the State of Texas, in which, by reason of the lnsufficient rainfall, irrigation is necessary for 

agricultural purposes, may be diverted from its natural channel. , . .‘I 

The Court approved the Court of Civil Appeals holding by stating: 

11 the act was not Inoperative because of 

Its fail&i to designate the territory which should 

be deemed the ‘arid portion of the State’ . . . 

This would have probably been impracticable . . . 

This was a question of fact to be determined as any 

other fact,.” 

The Court in Brazos River Conservation & Reclamation 

Dlst. v. Harmon, 178 S.W.2d 281 (Civ.App. 1944, ref. w.o.m.), 

stated: 

“The right to exercise the power of eminent 

domain must be conferred by statute, either In 

express words or by necessary implication.” 
- . 

Honorable R. H. Cory, page 3 (WW-621) 

'Proximity" has a sufficiently definite meaning to 

convey the legislative intent. Webster's New International 

Dictionary, 2nd Edition, Unabridged, defines "proximity' as 

follows: 

"Quality or state of being near or very near 

in time, place, causation, Influence, relationship, 

etc.; Immediate or close propinqulty." 

In Lacky v. Gulf C & S Ry. Co., 225 s.w.2d 630 civ. 

App. 1949), It was held that the stat&e (Sub. (d), Sec. 8 6, 

Art. 6701d, V.A.C.S.) requiring a vehicle driver, approaching 

a railroad crossing to stop within 50 feet and not less than 

15 feet from nearest rail and proceed no farther until he can 

do 80 safely, when approaching train Is "plainly visible" and 

Is in "hazardous proximity" to the crossing, Is not unconstitutional because of indefiniteness. 

We are of the opinion that the phrase "on or In proximity" as used in H.B. 142 is specific enough to define the restriction intended therein, and that, therefore, H.B. 142 is 

not unconstitutional for indeflnlteness. 

SUMMARY 

H.B. 142 of the 56th Legislature authorizing 

the State Parks Board to acquire public sites in 

proximity to the shores of public lakes, bay&and 

gulfs for recreational purposes Is not unconstltutional. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JAO:dhs 

Assistant 

APPROVED: 

OPINION COMMITTEE: 

Ceo. P. Blackburn, Chairman 

Houghton Brownlee, Jr. 

Joseph Q. Rollins, Jr. 

James R. Irlon, III 

W. Ray Scruggs 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: W. V. Geppert 

BY